ARB CASE NO. 05-072
ALJ CASE NO. 2005-SOX-14
DATE: July 31, 2006
In the Matter of:
CYNTHIA LOTSPEICH,
COMPLAINANT,
v.
STARKE MEMORIAL HOSPITAL,
RESPONDENT.
BEFORE: THE
ADMINISTRATIVE REVIEW BOARD
Appearances:
For the
Complainant:
Cynthia Lotspeich, pro se, Culver, Indiana
For the
Respondent:
Larry W. Bridgesmith, Esq., Mark W. Peters,
Esq., Waller Lansden Dortch & Davis, PLLC, Nashville, Tennessee
FINAL DECISION AND
ORDER
This case arises
under Section 806 (the employee protection provision) of the Corporate and
Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act
of 2002 (SOX), 18 U.S.C.A. § 1514A (West Supp. 2005), and its implementing
regulations. 29 C.F.R. Part 1980 (2005). Cynthia Lotspeich filed a complaint
alleging that Starke Memorial Hospital retaliated against her in violation of
the SOX. On March 3, 2005, an Administrative Law Judge (ALJ) issued a "Recommended
Order of Dismissal" (R. D. & O.) recommending dismissal of the
complaint. Lotspeich appealed the ALJ's decision to the Administrative Review
Board. For the following reasons, we dismiss her appeal.
[Page 2]
BACKGROUND
Starke hired
Lotspeich as a Healthcare Nurse on July 14, 2003. See September 14,
2004 Determination of the Occupational Safety and Health Administration (OSHA),
Starke Memorial Hospital/Lotspeich/5-2210-04-008 (Determination) at 1. Starke
discharged Lotspeich on or about March 31, 2004. Id. On June 15, 2004,
Lotspeich, through her attorney, filed a complaint alleging that, prior to her
discharge, she had informed her supervisor, other hospital administrators, and
her congressman that Starke "was involved in Medicare fraud." See
June 15, 2004 Letter to OSHA (Complaint) at 1. She contends that, because she
reported this fraud, "her supervisors harassed her with almost daily
harangues, reduced her hours, and ultimately terminated her employment with the
hospital." Id.
OSHA
investigated her complaint and determined that Starke had not violated the
SOX. Determination at 2. OSHA mailed copy of the Determination to Lotspeich's
attorney. He received the Determination on September 17, 2004. R. D. & O.
at 3; Complainant's Response to Supplemental Order to Show Cause (Response),
Document 8.
On November 30, 2004,
Lotspeich submitted a letter to the Office of Administrative Law Judges
requesting review of the Determination and waiver of the limitations period
applicable to her appeal. Response at 1. In response, the ALJ issued an Order
to Show Cause on December 20, 2004, allowing Lotspeich to indicate "why
her complaint should not be dismissed for failure to file her request for
appeal within thirty days of receipt of the September 14, 2004 notice of
findings from OSHA." Order to Show Cause at 2.
Lotspeich did not respond
to the Order to Show Cause. She contacted the ALJ on January 21, 2005 to
inquire about the status of her appeal and informed the ALJ that she never
received a copy of the Order to Show Cause. In response, the ALJ issued a
Supplemental Order to Show Cause on January 24, 2005, allowing Lotspeich
fourteen additional days to submit a response. Lotspeich responded to the
Supplemental Order to Show Cause on January 31, 2005.
In her response, she argued that her appeal should not be dismissed because she
did not receive a copy of OSHA's Determination. Response at 1. She also
indicated that, although her attorney received a copy of the Determination, he
failed to forward it to her. Id. at 2.
The ALJ issued an R.
D. & O. on March 3, 2005, in which she concluded that Lotspeich's appeal of
the Determination was untimely. R. D. & O. at 5. She also concluded that
Lotspeich had not established grounds for the application of the doctrine
[Page 3]
of equitable
tolling. Id. On March 11, 2005, Lotspeich petitioned for review
of the R. D. & O.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of
Labor has delegated to the Board her authority to issue final agency decisions
under the SOX. Secretary's Order 1-2002 (Delegation of Authority and
Responsibility to the Administrative Review Board), 67 Fed. Reg. 64272 (Oct.
17, 2002); 29 C.F.R. § 1980.110.
Pursuant
to the SOX and its implementing regulations, the Board reviews the ALJ's
factual determinations under the substantial evidence standard. 29 C.F.R. §
1980.110(b). However, the Board reviews an ALJ's conclusions of law de novo.
Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No. 04-SOX-51, slip op. at 7
(ARB June 29, 2006).
Discussion
The
regulations governing the SOX require an appeal from a determination by OSHA to
be filed within 30 days of issuance of the determination. 29 C.F.R. § 1980.106(a).
However, the time limits for filing complaints and requesting appeals in whistleblower
cases are not jurisdictional, and may be subject to application of the doctrine
of equitable tolling. See, e.g., Harvey v. Home Depot U.S.A., Inc., ARB
Nos. 04-114 and 115, ALJ Nos. 2004-SOX-20 and 36, slip op at 16 (ARB June 2,
2006). When deciding whether to relax the limitations period in a particular case,
the Board has been guided by the discussion of equitable tolling of statutory
time limits in School Dist. of the City of Allentown v. Marshall, 657
F.2d 16, 18 (3d Cir. 1981). The Third Circuit recognized three situations in which
tolling is proper:
(1)
[when] the defendant has actively misled the plaintiff
respecting
the cause of action,
(2)
the plaintiff has in some extraordinary way been
prevented
from asserting his rights, or
(3)
the plaintiff has raised the precise statutory claim in
issue
but has mistakenly done so in the wrong forum.
[Page 4]
657 F.2d 16, 18-20 (1981)
(citation omitted).
Lotspeich filed her
appeal 80 days after the issuance of the Determination. R. D. & O. at 4. Because
her appeal is untimely, Lotspeich bears the burden of justifying the
application of equitable tolling principles. See, e.g., Santamaria v. EPA,
ARB No. 05-023, ALJ No. 2004-ERA-25, slip op. at 4 (ARB Mar. 31, 2005).
In her brief,
Lotspeich does not contend that Starke actively misled her as to her cause of
action or that she mistakenly filed her claim in the wrong forum. However, she
does contend that she "was prevented in an extraordinary way from
asserting [her] rights based on the failure of O.S.H.A. to mail [her] a Letter
of Determination and the failure of [her] former attorney to forward [her] a
copy of the Letter of Determination." Complainant's Brief at 6.
We agree with the ALJ's
conclusion that, even if Lotspeich did not receive a copy of the Determination,
delivery of a copy of the Determination to her attorney constituted notice to Lotspeich
of OSHA's Determination. R. D. & O. at 5. Lotspeich's Response indicates
that she was represented by counsel during the 30 days she could have appealed
OSHA's Determination. See Response at 1-2, Documents 1-2. The Board
has held that equitable tolling is generally inapplicable when a complainant is
represented by counsel. See Day v. Oak Ridge Operations, U.S. Dept. of
Energy, ARB No. 02-032, ALJ No. 1999-CAA-23 slip op. at 2, fn. 2, (ARB July
25, 2003). We have noted in previous cases an attorney's failure to timely
file an appeal does not ordinarily constitute an "extraordinary"
circumstance justifying equitable tolling. See, e.g., Dumaw v. Int'l Bhd.
of Teamsters, Local 690, ARB No. 02-099, ALJ No. 2001-ERA-6, (Aug. 27,
2002), slip op. at 5. Likewise, the alleged failure of Lotspeich's attorney to
forward a copy of the Determination to her did not toll the 30 day limitations
period.
Accordingly, finding
that Lotspeich did not timely file her appeal to the ALJ, and finding no
grounds justifying equitable tolling of the limitations period, we DISMISS
her petition for review.
SO ORDERED.
WAYNE
C. BEYER
Administrative
Appeals Judge
M.
CYNTHIA DOUGLASS
Chief
Administrative Appeals Judge
